Opinion
No. 2011–1021 K CR.
05-19-2015
The PEOPLE of the State of New York, Respondent, v. Tavares PARKER, Appellant.
Opinion
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael Gerstein, J.), rendered March 9, 2011. The judgment convicted defendant, after a nonjury trial, of disorderly conduct.
ORDERED that the judgment of conviction is affirmed.
Defendant was initially charged with assault in the second degree (Penal Law § 120.05 ), obstructing governmental administration in the second degree (Penal Law § 195.05 ), and resisting arrest (Penal Law § 205.30 ). Prior to a nonjury trial, the People moved to reduce the charge of assault in the second degree to attempted assault in the third degree (Penal Law §§ 110.00, 120.00 ) and to dismiss the remaining charges. At the charge conference, defense counsel requested that the court consider a lesser included offense (CPL 300 .50[2] ) and, when the court indicated that it intended to submit disorderly conduct (Penal Law § 240.20 ) as the lesser included offense, neither party objected. Following the trial, defendant was acquitted of attempted assault in the third degree but convicted of disorderly conduct.
We need not pass on whether disorderly conduct is a lesser included offense of attempted assault in the third degree since error in that regard, if any, was waived by the parties' failure to timely object (see CPL 300.50[1] ; see also People v. Richardson, 88 N.Y.2d 1049, 1051 [1996] ; People v. Ford, 62 N.Y.2d 275, 279 [1984] ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People Danielson, 9 NY3d 342 [2007] ), we accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v. Lane, 7 NY3d 888, 890 [2006] ; People v. Mateo, 2 NY3d 383, 410 [2004] ; People v. Bleakley, 69 N.Y.2d 490, 495 [1987] ). Here, the testimony presented at trial demonstrated that defendant's conduct had a public dimension (see People v. Baker, 20 NY3d 354 [2013] ; People v. Munafo, 50 N.Y.2d 326 [1980] ) since there was a crowd of between 30 and 60 civilian bystanders present. There was thus at least a risk that members of the public would observe the encounter between defendant and the police officers, and be alarmed thereby (see People v. Pritchard, 27 N.Y.2d 246, 248 [1970] ; cf. People v. Zuckerberg, 44 Misc.3d 66 [App Term, 2d, 11th & 13th Jud Dists 2014] ). Furthermore, the evidence established that defendant's conduct fit within numerous subsections of the disorderly conduct statute, including: Penal Law § 240.20(1), in that he engaged in fighting or in violent, tumultuous or threatening behavior; Penal Law § 240.20(2), in that he made unreasonable noise; Penal Law § 240 .20(6), in that he congregated with other persons in a public place and refused to comply with a lawful order of the police to disperse; and Penal Law § 240.20(7), in that he created a hazardous or physically offensive condition by an act which served no legitimate purpose. Thus, upon a review of the record, we are satisfied that the verdict convicting defendant of disorderly conduct was not against the weight of the evidence (see People v. Romero, 7 NY3d 633 [2006] ).
Accordingly, the judgment of conviction is affirmed.
PESCE, P.J., SOLOMON and ELLIOT, JJ., concur.